Thursday

On March 18, 2009, United States District Judge Owen M. Panner found that the Religious Freedom Restoration Act protects the Santo Daime's use of ayahuasca as a sacrament of their church. The court was guided by the unanimous decision of the United States Supreme Court in the very similar União do Vegetal case in 2006, and concluded that RFRA requires that — subject to reasonable restrictions — the plaintiff church be allowed to import and drink ayahuasca for their religious ceremonies.

The suit was brought by the Church of the Holy Light of the Queen in Ashland, Oregon, led by padrinho Jonathan Goldman, a student of Santo Daime for twenty-one years, who had traveled frequently to Brazil to receive instruction from church leaders, and learned Portuguese in order to understand the hymns that constitute church doctrine. Joining in the suit was a separate church in Portland, called Céu da Divina Rosa, Church of the Divine Rose, and its leader Alexandra Bliss Yeager, as well as several individual members of both churches.

Goldman had been arrested and the church's supply of ayahuasca seized by federal agents in1999. Counsel for the plaintiffs in the lawsuit attempted to negotiate an agreement with the Department of Justice, which refused to consider a religious exemption for the church. On the other hand, in 2000, the Oregon Board of Pharmacy determined that the religious use of ayahuasca by the Church of the Holy Light of the Queen was a "non-drug" use, and therefore not subject to state drug laws and regulations. Since that time, ayahuasca has had a status in Oregon law similar to that of peyote when used as a sacrament by the Native American Church.

Following Goldman's arrest, the plaintiffs continued to practice their religion in secret. In 2006, after the Supreme Court handed down its decision in the União do Vegetal case, the plaintiffs commissioned a study of Church of the Holy Light of the Queen members by psychiatrist John H. Halpern, who had written extensively on the use and abuse of hallucinogenic drugs, including a paper on the long-term health of members of the Native American Church who consume peyote as a sacrament — a study we have discussed here.

In 2008, armed with the results of that study and the earlier ruling of the Supreme Court, plaintiffs brought suit in federal court, seeking an injunction that would allow them to use ayahuasca as a central sacrament of their religious practice.

Judge Panner's opinion provides a scholarly and sympathetic account of Santo Daime history and doctrine in general, and of the practices of the Church of the Holy Light of the Queen in particular — their careful records of ayahuasca purchase and use, their screening procedures for new members, their use of medical questionnaires, their "controlled and supportive religious ceremony," their security procedures for storing and distributing ayahuasca.

The court was less sympathetic to the claims of the government, particularly its scientific case concerning purported short- and long-term effects of ayahuasca use. "I find studies of LSD and pure injected DMT," the court wrote, "are only marginally relevant in evaluating the risks of consuming Daime tea in a religious ceremony."

The court was also unimpressed with the government's other arguments. For example, the government asserted a compelling interest in preventing the diversion of ayahuasca to recreational users. "The government has not presented evidence that there is a significant market for Daime tea," the court wrote. "The government also has not presented evidence that plaintiffs have allowed the diversion of a single drop of Daime tea. This is an issue best addressed through reasonable guidelines for storing and inventorying plaintiffs' supply of Daime tea."

The court closely followed the legal reasoning of the Supreme Court in the União do Vegetal case, and similarly found that the government had failed to establish either a compelling state interest in forbidding the use of ayahuasca by the church, or that "outright prohibition of the Daime tea is the least restrictive means of furthering its interests." On those grounds the court found that the plaintiffs were entitled to the requested injunction under the Religious Freedom Restoration Act.

The entire opinion is cogent, clear, sensible, and well worth reading as a road map for the litigation of similar cases in the future.

Ordinarily, we could now expect a long, expensive, exhausting slog to the Supreme Court. But it may be worth noting that, on the same day as Judge Panner issued his opinion, U.S. Attorney General Eric H. Holder Jr. told reporters that the current administration would effectively end the earlier policy of frequent raids on distributors of medical marijuana. He said that the Justice Department's enforcement policy would now be restricted to traffickers who falsely masqueraded as medical dispensaries and "use medical marijuana laws as a shield."

It is not at all clear whether this might signal a change in administration policy toward the use of ayahausca by such entities as the Santo Daime church. Commenting on this case, Mark Kleiman, a nationally recognized expert in the field of crime and drug policy, suggests that the simplest approach would be for the Attorney General to tell the DEA Administrator to draft and publish in the Federal Register a set of procedures and criteria to deal with cases such as this in the future.

13 comments:

I'm not an official representative of the Santo Daime, but as a member, I hope that my church can be understood as something bringing deep personal meaning and healing to those of us who attend. I show up to heal, and to be of service to my brothers and sisters by helping to hold the container, the energetic container we create together with the hymns, dancing, music and Sacrament, the shared container in which we heal and work together.

I understand the interest the public has in the effects our court case will have out in the wider entheogenic community, but I believe that those of us committed to the work do so for deeply personal reasons.

Those reasons can be as varied as the individuals themselves, and yet there are some persistent and familiar themes when you talk to people after a work. We don't really talk much about the church's activities in the world, but instead about the deep insights into our own lives that we opened to during the work. The conversation is about our deepest feelings, the hopes and fears that we studied in the power of the Medicine.

I understand that it's interesting looked at from a distance, as a movement, a Church, or as part of the entheogenic culture, but when your in it, it's the life inside us being felt deeply and in a profoundly personal manner that's the core of the experience.

I'm sure you understand that you can talk to people about sitting in ceremony, but the description, while being related to it, isn't the experience itself, and the experience is deeply personal. For me the heart of my willingness to sit through such transformational experiences has mostly to do with being present in them, living through them, and then gathering the courage to do it again.

I'm suggesting that the heart or core of the issue of the legalization of the Santo Daime isn't about the US Govt., or even about the SD Church. It's the transformational and deeply powerful interior experiences of the people who attend, and our feeling that it's our sacred right to have those experiences that is the real story.

In my opinion legalization is an effect of the commitment and powerful faith that it's our personal right to behold and be present in the sacred moment. The strength of that commitment and faith in that right is why I feel it's getting negotiated out in the world.

excellently said. thank you so much. all that i would add at this time is that, in addition to being a deeply powerful personal experience, the Santo Daime ritual is also a unique and profound collective experience. the more it heals our individual manifestations of separation from source, the more we are able to experience - rather than merely conceptualize - becoming One. the whole is much greater than the sum of its parts.

If i had a choice of going to brazil or peru to experience inner healing with ayahuasca or using it legally with experienced people in the USA i would choose the latter.Does anyone know where their churches are located ?thanksserenTexas

An important basis of the court's holding was that the Church of the Holy Light of the Queen carefully screened its membership and took steps to prevent the casual use of its sacrament. Nowhere in either the court's ruling or in the principles of Santo Daime is there provision for casual drop-in ayahuasca use. Of course, I could be misjudging Anonymous's intention. If Anonymous intends to move to Oregon, establish residency, and develop a long-term religious commitment to the Santo Daime community and its beliefs, then I apologize. But it certainly sounds as if Anonymous wants something else. I would be grateful for a clarification.

Anonymous does not really need to clarify or "purify" his/her motives.

Santo Daime churches receive visitors. Those who wish to drink Santo Daime are not turned away and the extent to which their motivations can be checked against the "correct" ones is quite limited.

Visitors are screened -- there are physiological safety issues like incompatible drug use -- and prepared for the experience. When the legal status of the church requires it, that process becomes more involved, delving into where the person is "coming from." But curiosity and a desire to drink the medicine in a safe environment with experienced people are common reasons for attending Santo Daime works. In fact, it would be impossible for a newcomer to bring an intention to "move to Oregon, establish residency, and develop a long-term religious commitment to the Santo Daime community and its beliefs." It is perfectly normal and in fact inevitable for a beginner to be "casual." It simply comes with not knowing what will happen.

Thank you for your always valuable input. I may have expressed myself hastily. I certainly had no right to speak for the Santo Daime or any of its members.

Still, I think the church has a problem that it needs to face squarely, and about which it may need to develop some policy. Let me give a hypothetical example.

Suppose a quasi-Rastafarian church in a relatively small town manages to persuade a federal district court judge — despite fierce opposition and dire predictions of catastrophe by the government — that is has the right under the Religious Freedom Restoration Act to smoke marijuana at weekly gatherings. A significant part of its argument consists of persuasive assurances to the court concerning the screening of its members and the security of its marijuana.

Then suppose people start dropping in from out of state to smoke marijuana for a weekend or two at the church, in order to seek inner healing and illumination. These visitors will have to stay somewhere in town; groups of these visitors will come and go; there may even be many of them; but, no matter how few they are, they will be noticed.

I predict that it will take the government just about three minutes before it is back in court arguing that the church has broken its commitments, violated the terms of the court's orders, and is publicly distributing a controlled substance outside the bounds of its permit.

I am not sure I understand. How could the government argue that the church is "publicly distributing a controlled substance outside the bounds of its permit" since the out-of-town visitors are in town to attend functions at the church? And if those visitors are stupid enough to smoke in town as well, isn't it their legal problem as individuals and not the church's? And if the church supplied them, then the church is too stupid to deserve to operate.

Overall, I found the hypothetical scenario a little hard to buy for cultural reasons. In the USA, marijuana is much more than a plant. It carries a considerable amount of cultural baggage. Authorizing the consumption of marijuana in a a church would trigger much more lower-brain "conservative" reactivity than would authorizing a South American tea. I find it unlikely.

The only place where I could see that kind of happening would be, maybe, Hawaii in a few years. And by that time the surrounding culture would be close enough to the church in attitude for the government going back to harass the church for contaminating the mainstream to be a non-issue. (That's not a very pretty sentence but you know what I mean.)

In other words, I believe that in the USA, churches using marijuana as a sacrament will be the last ones to be authorized, after all the other churches using other plants as sacraments.

I am not sure I agree with you about differences in public perception between marijuana and ayahuasca. If you look at the media responses to the Santo Daime court decision, you can see lots of references to church members now "getting high" legally. But even if you are correct, I am not sure that it changes the force of the analogy.

It may be that the logic of your position would carry the day in court. Every time I went into court, I also felt pretty confident in the logic of my position, and I was often surprised. :-) Now Santo Daime may decide that the legal risks of sharing ayahuasca with strangers are outweighed by spiritual considerations, and I would have no problem with that. The question for me is whether the church has thought this through and developed a coherent and legally defensible policy on this matter.

"The question for me is whether the church has thought this through and developed a coherent and legally defensible policy on this matter."

I don't know if it has. But I cannot conceive of a Daime church not having visitors any more for the sake of staying out of trouble with the law. That just doesn't jive with the spirit of the enterprise. After all, every church member including the leader started out as a guest somewhere.

I do not think the Oregon decision says anything that could be interpreted by the authorities as "no guests." As things stand, I would say that a continuation of the highly conscious and highly sophisticated existing policies about guests satisfies the spirit of the ruling in terms of responsible management of the sacrament.

You make a good point not to expect logic to win the day in the judicial system. Jonathan Goldman filed his petition after much praying and consulting with others. His decision involved faith, but not naivete. He and his advisers examined every angle very carefully. They hit the lode when they got a genuinely good judge who knew what the core question was and ruled with integrity. We all know that cannot be counted on every time.

Sometimes -- not too often -- I am proud to be an American. Back in Europe where I am from, religious freedom is not as central a value as it is here and the legal fights are even more arduous.

It is great to have someone like you who has lived in both worlds -- the law and reality. Your postings on legal issues are more subtle and informative than anything else I have seen.

"Having lost five times now on the merits of the question whether religious freedom laws compel the government to permit an exception to the religious use of ayahuasca, the Justice Department has dug in on narrower legal issues. In particular, the strategy in both the Oregon Church of the Holy Light of the Queen (Santo Daimem or CHLQ) case and the UDV case appears to be a tooth-and-nail haggling over the exact forms of handling and recordkeeping that will apply to the importation of ayahuasca from Brazil. Testimony from the UDV case amply documented the lack of DEA oversight of Native American Church peyote distribution and use after the cactus is purchased from the licensed peyoteros in the Southwest. However, courts have so far rejected the argument that the ayahuasca churches are legally comparable to the Native American Church. Consequently, the Justice Department has told them, in essence: “congratulations, you are now official importers of a controlled substance! Now you are accountable for all of the regulations that govern such importation.” The court in the UDV case explicitly forbade the government from imposing some of the more clearly incongruous recordkeeping measures, such as the requirement, under 21 C.F.R. § 1312.12(a), that importers of controlled substances indicate the quantity of the substance to be imported in kilograms. (The court ruled that the UDV could report its importation activity in liters, though it did also require that samples of each batch of ayahuascabe set aside for testing by the DEA for DMT content.) This ruling still gave the government a lot of room to maneuver. Having lost on the substantive issues in court, the Justice Department has so far resisted attempts to settle the case under a permanent arrangement, arguing instead over recordkeeping and other minutiae that seem to some to be a kind of legal filibuster. Now that the Oregon court has ruled in favor of the CHLQ, the government is adopting a similar stance there. Judge Owen M. Panner, who presided over the Oregon case, went further than New Mexico Judge James A. Parker did in the UDV case, ruling that agents of the government "are enjoined from requiring Plaintiffs to conform their conduct to any regulations except as set forth" in the injunction. The Justice Department has filed a brief asking Judge Panner to modify the injunction, and claiming that most of the regulations in question were not alleged at trial to violate the CHLQ members' religious freedom, and should therefore not put out of bounds by the decision."

I don't know about you, but all this gives me an intuitive hunch that the winds are turning in a big way, that brighter days are a short way ahead.

But then, I don't have any legal training nor a good feel for such things.

The questions are definitely being considered Steve. Before we were able to stand up in the light of day so to speak, we were extremely vulnerable. With no recognition or permission to operate as a church this idea was carefully considered and weighed heavily on those responsible for the protocols surrounding new members. With the limited recognition we have now it's still a vital question, possibly even more so than before, because our status as a viable church is now part of what there is to safeguard.

The main reason for careful consideration has always been and remains the well being of those who attend. That's the primary consideration. The Santo Daime is a place of healing, and thoughtful consideration of a persons general physical and mental health, and the possibility of healing as an outcome of their participation, means handling requests to participate with real care and very specific and informed attention to that person.

Another consideration in the development of any public statement regarding protocols for new members is that we don't proselytize. "to convert or attempt to convert as a proselyte; to recruit."

While we have protocols that were shared with the Govt. in pursuit of our freedom, I doubt any policy statements describing aspects of managing membership will be put forward to clarify for someones casual interest how we operate.

The Medicine calls certain people to explore along this one path of many possible paths, and if their interest is determined and committed they'll find us. When they do, rest assured that good people will look very carefully at them and be as responsible as we can be for their well being. Our freedom to exist and practice our faith likely depends on it.

Thank you for your kind words. It is, of course, up to the church to balance its level of legal risk over against the level of its hospitality. But I think there should be a thought-out policy that can be presented to a court in case of challenge by the government. As a general rule, it is always better to have a policy — to be able to say that you have thought seriously about what you are doing.

I agree with you, by the way, that the Santo Daime lawyers did an excellent job. Their case was helped by an intelligent and skeptical judge and by what appear to me to be inept government lawyers, whose basic argument seemed to be that the judge should simply defer to the superior judgment of the DEA.

If I have learned anything from twenty-five years of standing in front of federal district court judges, it is this: the easiest way to get a judge to rule against you is to tell the judge to defer to someone else. :-)

A lawyer dies and goes to heaven. Every once in a while, while she is lounging on a cloud, she sees a black-robed figure walking around. Finally, curious, she asks an angel who the person in the black robe is. "Oh, that's God," says the angel. "God?" says the lawyer. "Why is God wearing a black robe?" The angel says, "Oh, He thinks he is a federal district court judge."